IN THE CASE OF:  
	  

		BOARD DATE:  14 May 2015	  

		DOCKET NUMBER:  AR20140016080 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his records to show he was honorably retired from the U.S. Army based on a permanent disability or, in in the alternative, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he was medically discharged.

2.  The applicant states, in effect, he was discharged from the Army because of an injury to his left leg.  As a result, he has never held a job for more than a few months at a time since being discharged.  He adds that he applied for a Department of Veterans Affairs (VA) home loan, but his application was denied because he did not serve in the military over than 90 days.

3.  The applicant provides copies of his Medical Evaluation Board (MEB) records, DD Form 214, and post-service medical records.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the U.S. Army Reserve on 5 January 1973 for a period of 6 years and he further enlisted in the Regular Army on 30 January 1973 for a period of 3 years.

3.  A review of the Standard Form (SF) 93 (Report of Medical History) and SF 88 (Report of Medical Examination) prepared by the applicant and the examining physician to document the applicant's entrance physical examination on 
5 January 1973 shows the applicant denied ever being treated or having surgery for any medical condition.  The SF 88 also shows the examining physician found the applicant qualified for enlistment.

4.  On 14 February 1973, the applicant requested separation for the convenience of the government by reason of a physical condition (post-operative incisional pain) which rendered him unfit for induction/enlistment.  He acknowledged that had the condition been known at the time of his entry into military service, it would have permanently disqualified him from service.  The unit commander recommended approval of the applicant's request for separation.

5.  A DA Form 8-118 (Medical Board Proceedings) shows the applicant was diagnosed with status post left inguinal herniorrhaphy with abundant scarring and manifested by left lower quadrant pain.

	a.  It also shows the condition existed prior to service (EPTS) with an approximate date of origin in 1972.

	b.  The board recommended the applicant be separated under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-9, for failure to meet medical procurement standards.  The medical approving authority approved the findings of the board on 23 February 1973.

   c.  On 26 February 1973, the applicant was informed of the approved findings and recommendations of the board, and the discharge authority approved the applicant's separation action.

6.  The applicant's DD Form 214 shows he entered active duty on 30 January 1973 and he was honorably discharged on 9 March 1973 under the provisions of Army Regulation 635-200, paragraph 5-9, for not meeting medical fitness standards.  He had completed 1 month and 10 days of active duty service this period.

7.  In support of his application the applicant provides the following documents.

   a.  SF 600 (Clinical Record – Narrative Summary), undated, subject:  Medical Board, that shows the applicant's chief complaint was left lower quadrant pain.  Doctor (Captain) S____ J. K____, Medical Corps, noted the applicant had a left inguinal herniorrhaphy approximately one year prior and that he had been in the military for approximately 11 days.

   b.  An SF 88, prepared on 12 February 1973 by the examining physician for the purpose of the applicant's medical board, that shows in "Notes" he recorded, "[r]eveals patient to be status post inguinal herniorrhaphy with abundant scar tissue in the left groin and distinct pain on movement."

   c.  Memorandum, dated 12 February 1973, subject:  Post-op incisional pain, that shows, in pertinent part, "No further Military Training" and that it was signed by Doctor (Major) L____ S____, Medical Corps.

   d.  Two Statements of Office Visit that show Doctor J. S. W___ certified:
   
* on 31 March 2005, the applicant was under his care for groin pain
* on 13 March 2007, the applicant stated he had a left inguinal operation in 1972 and that he had suffered from recurrent "cellulitis " of the left leg

   e.  MEDPLUS Medical Centers prescription, dated 8 February 2010, that shows the applicant complained of left leg swelling and pain "for an injury sustained in basic training in 1972."

   f.  VA Atlanta Regional Office, Decatur, GA, letter, dated 7 May 2014, that shows the applicant's request for a Certificate of Eligibility for VA Home Loan Benefits was denied because the VA determined he was not eligible.

8.  Army Regulation 40-501 (Medical Fitness Standards for Retention and Separation, including Retirement) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5 (Separation for Convenience of the Government), 
paragraph 5-9, in effect at the time, provides that Soldiers who were not medically qualified under procurement medical fitness standards when accepted for initial enlistment will be discharged when a medical board, regardless of the date completed, establishes that a medical condition was identified by appropriate military medical authority within 4 months of the member's initial entrance on active duty, which would have permanently disqualified him for entry into the military service had it been detected at that time.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was retired from the U.S. Army based on permanent disability or, in the alternative, medically discharged.

2.  Records show approximately 11 days after entering military service an Army doctor found the applicant had status post inguinal herniorrhaphy (approximately 1 year earlier) with abundant scar tissue in the left groin and distinct pain on movement.

   a.  The evidence of record also shows the applicant failed to disclose this information at the time of his entrance physical examination.

   b.  Moreover, the medical records the applicant provides in support of his application offer additional evidence that the condition EPTS.  (The entry on the prescription written in 2010 (i.e., "for an injury sustained in basic training in 1972") is noted.  However, records show the applicant did not enter military service until 1973.)

3.  On 14 February 1973, the applicant requested separation for the convenience of the government by reason of the physical condition which EPTS and rendered him unfit for enlistment.  He acknowledged that had the condition been known at the time of his entry into military service, it would have permanently disqualified him from service.

4.  Records also show a medical board was convened within the applicant's first month of active service and found his condition was medically disqualifying under procurement medical fitness standards based on an EPTS condition.  Accordingly, the separation authority directed the applicant be separated from the Army.

5.  The applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 5-9, based on being not medically qualified under procurement medical fitness standards prior to entry on active duty was in compliance with all requirements of law and applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the type of discharge directed, narrative reason, and character of service shown on the applicant's DD Form 214 are appropriate and correct.
6.  In view of all of the foregoing, there is no basis for granting the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   X______   ___
       	   CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20140016080



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ABCMR Record of Proceedings (cont)                                         AR20140016080



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